The Holocaust Law Triggers Unanticipated Consequences

–Wojciech Sadurski, Challis Professor of Jurisprudence, The University of Sydney; Professor, Center for European Studies at the University of Warsaw; Visiting Professor, Yale Law School.

With one stroke of a pen, the Polish President Andrzej Duda in the beginning of February focused the attention of the world on three phenomena, highly embarrassing to the current Polish elite, that they would like to keep hidden from scrutiny: Polish anti-Semitism, breaches of freedom of speech, and the dismantling of Polish Constitutional Tribunal. If political scientists want to find a good illustration of the “law of un-anticipated consequences”, this is it. Even the current US administration, no great fan of promoting liberal democracy worldwide, could not keep silent about the populism in Warsaw: the combination of anti-Semitism, censorship and assaults on independence of courts compelled Secretary of State Rex Tillerson to offer a lesson to Polish government that the new law “adversely affects freedom of speech and academic inquiry.”

At the end of January, the Polish parliament enacted a law amending the statute on the Institute of National Remembrance (Polish acronym: IPN)  – an Orwellian named office the mission of which combines historical research with prosecutorial powers. The new law established an offence, punishable by up to 3 years in jail, of publicly and falsely attributing responsibility or co-responsibility to the Polish nation or the state for crimes against humanity committed by the Nazis during the Second World War. The same law also provides civil sanctions for statements damaging the reputation of Poland or the Polish nation. According to the law, the Institute of National Remembrance as well as selected NGOs would be empowered to bring civil law actions in order to protect the good name of the Republic of Poland or the Polish Nation.

The chilling effect of such penal and civil laws upon scholarly or journalistic debates regarding the darker sides of Polish history is obvious, and the laws clearly resonate with highly nationalistic governmental rhetoric, according to which Polish history is comprised entirely of heroic acts and undeserved victimhood, never of criminal actions. The proposed law is sometimes referred to as “lex Gross”, referring to Professor Jan T. Gross whose books and articles depicting Polish crimes against Jews on German-occupied territories during World War II have provoked heated public debates in Poland over recent decades.

A publicly avowed motive by the government for proposing this law was to counteract – the admittedly unfortunate – usage of the term “Polish concentration (or death) camps”. But this rationale is manifestly insufficient to carry the burden of defending the law: while in Poland no one ever uses this concept, the law would be totally toothless with regard to foreigners, committing this “crime” in non-Polish media. In fact, both the further justification and the plain meaning of the text of the law suggest that its reach is much broader: that it covers statements other than “Polish concentration camps” but those which can be seen as “attributing responsibility or co-responsibility” to the Polish nation for, inter alia, the crimes of Holocaust.

But at which point does a statement about a large number of Polish criminals during the Second World War (including so-called “shmaltzovniks”, i.e. those who denounced Jews to the Germans) become an “attribution” of co-responsibility to the Nation as a whole? No-one ever says that a particular action was committed by “the Nation”. These crimes are committed by individuals. But how many individuals does it take to personify a Nation as a whole? The very fact of these questions immediately suggests how vague and imprecise this provision is. In fact, it is less about a statement of fact that of an opinion: an opinion about (the alleged) responsibility of, say passive onlookers. To punish for an opinion is anathema to any system of freedom of expression – and this is precisely what the law provides.

The defenders of the law pointed to two types of exceptions which are allegedly speech-protective. First, punishment would be meted out only for statements “contrary to facts”. But the “facts” are often very disputed – as for example regarding the now infamous pogrom and massacre in Jedwabne on July 10, 1941. While a group of “old” IPN experts pointed at active agency of Polish neighbours in murdering the Jedwabne Jews, the new head of the Institute, Dr Jarosław Szarek, claims that Poles acted under coercion by Germans. The practical outcome is that the prosecutors and the judges will have to determine historical facts about which there is an ongoing dispute among historians. Second, “scholarly and artistic” works will be exempt from liability. But this does not include journalism and popularization of scholarship. Will an historian appearing in the media attract criminal responsibility, while lecturing in a classroom will be exempt? All this shows how dangerous and malleable the new law is.

Rather than protecting the pride and “good name” of Poland, the fact of enacting a criminal sanction for making “improper” statements about Poland’s past suggested to many that there must be some ulterior reasons – a sense of guilt? – for such an unusual, restrictive response to certain statements made in the course of public debate. As Polish legal scholar Professor Tomasz Koncewicz observed, the law “is the most recent proof that in Poland the past continues to be seen as a collection of indisputable truths, not open to divergent interpretations and historical debate”.

The law quickly became a matter of major embarrassment for the government, and both the US and Israeli governments reacted angrily: the former, on the basis that the law involved a general violation of freedom of speech, the latter, on the basis that the law may silence the testimonies of many Holocaust survivors who remember the inhospitable (to say the least) attitude of their Polish neighbours during the German occupation. Oddly enough, President Duda signed the law and at the same time sent it to the Constitutional Tribunal (CT) for a post-factum scrutiny: an arguably internally contradictory action. Under Polish law, if the President has doubts about the constitutionality of the law, constitutional convention requires him to send the law to the CT for an ex ante review, and if the President signs the law, this signifies lack of constitutional doubts. The President, being formally a “guardian of the Constitution” must not promulgate a law which is putatively unconstitutional. The real reason for that incoherent action was an attempt to reconcile an appeal to nationalistic pressures within Poland with an attempt to placate the observers abroad. Political opportunism once again produced a constitutionally scandalous action.

Moreover, the Polish Constitutional Tribunal is nothing but a façade these days: after two years of court-packing and legal manoeuvres by the government, the top court of constitutional review has become a sham institution, taking orders from the government, and more specifically, from the leader of PiS, Jarosław Kaczyński. The Tribunal will do what the government will see as opportune. And most probably, it will be to quietly invalidate the law. PiS will have the best of both worlds: it will show to its hard-line electorate how much it defends the Polish “good name”, and at the same time it will free itself of the burden of the law, which has become such an international liability. All the more so since, in the era of its increasingly strained relations with the EU, due to massive violations of the rule of law in Poland, it needs all the support it can get from President Trump’s administration. It hopes that Washington will look the other way when it commits yet another act of dismantling of checks and balances – but that will not happen while anti-Semitism, freedom of expression and judicial independence are at stake. Precisely the three matters about which President Duda, in his awkward and unprincipled action of signing the law into force and initiating its constitutional scrutiny at the same time, has unwittingly reminded the world.

Suggested Citation: Wojciech Sadurski, The Holocaust Law Triggers Unanticipated Consequences, Int’l J. Const. L. Blog, Mar. 14, 2018, at: http://www.iconnectblog.com/2018/03/the-holocaust-law-triggers-unanticipated-consequences